When a Contentious Probate Litigation Leads to a Disadvantageous Result

As is often the case, probate litigation can quickly become contentious, especially when competing Wills are offered for probate.  Litigation can become costly, and disadvantageous errors in judgment and strategy can result in unintended consequences.

In Re Matter of Harper (2019 N.Y. Misc. LEXIS 1073; 2019 NY Slip Op 50333(U) ; 63 Misc. 3d 1203(A); 2019 WL 1281833), an initial probate proceeding was begun on March 24, 2010, almost 15 months after the death of the testator on December 31, 2008, to probate a Will dated May 27, 1997.  In that Will, the decedent, himself an attorney, left his real estate and other tangible property to be divided equally among two nephews, his sister, and his three sons.  The residuary estate was left to his wife.  Objections to probate were then filed by his wife, his three sons, and his daughter Faith through a guardian ad litem.

However, this probate proceeding was stayed pending the outcome of another probate proceeding, this time for a Will dated September 25, 2007.  For over a decade thereafter, the parties engaged in costly litigation over the validity of the 2007 Will.  Only a copy of the 2007 Will existed, dated March 6, 2006.  Decedent’s wife filed for summary judgment, arguing that the later Will revoked the 1997 Will, though she did not argue for the admission to probate of the 2007 Will.  On January 30, 2018, the court denied the wife’s summary judgment motion.

One of the decedent’s sons who would have benefited from the real estate provision in the 1997 Will then brought another summary judgment motion, nearly identical to the wife’s, asking that the court find that the 2006 copy of the Will revoked the 1997 Will.  Decedent’s sister and her son, both non-distributees under the 2006 copy, objected to the summary judgment motion on the basis that “that production of the copy of the “unauthenticated” 2006 will is ‘simply a ploy to plunge the Estate into Administrative chaos.’”  The court wryly noted:  “This last argument is made apparently as a result of amnesia regarding the last ten years of family conflict and litigation.” 2019 N.Y. Misc. LEXIS 1073, at 3; 2019 NY Slip Op 50333(U) at 2.

In order to succeed on a summary judgment motion to revoke a prior Will as a matter of law, the objectant must make a prima facie case that  a) the  instrument was properly executed;  b) the decedent had testamentary capacity at that time; c)  the Will  presented is a true and complete copy of the original; d)  the instrument by its terms revoked the prior Will;  and  e) that the earlier Will was intentionally revoked by the decedent (see EPTL § 3-4.1).

In support of his summary judgment motion, the son offered the following evidence: 1) a copy of the Will allegedly drafted by the decedent himself who was an attorney; 2) a showing that the Will was executed in the presence of two attesting witnesses; 3) the attestation clause included in the Will; 4) a contemporaneous self-proving affidavit; and 5) deposition transcripts of the two attesting witnesses and the notary to the 2006 Will.  One of the attesting witnesses was himself an attorney.  Both attesting witnesses testified to the decedent’s testamentary capacity and that the signatures on the copy were indeed genuine.

The court then explicitly noted this:  “As probate of the 2006 instrument as a lost will is not being sought.”  The question is why not?  Did the son not know that he could make the application to the court to probate a lost Will?  Why seeks a revocation of a prior Will without first seeking to probate the 2006 copy?

Here is why these questions matter.  Ff successful, by using the 2006 copy of the Will as a tool to only revoke the 1997 Will, the outcome would be that the decedent legally died without a Will and that New York’s intestacy statute (EPTL 4-1.1) would then apply to decedent’s estate.  Decedent’s wife is entitled to receive the following in intestacy:

1. Cash or cash equivalents, including bank accounts of up to $25,000.
2. One car of up to $25,000 (if the value of the car is greater than $25,000, the spouse has the option of paying the difference to the estate).
3. Household items, including the decedent’s clothes, furniture, appliances, and jewelry up to $20,000.
4. The decedent’s family pictures, books, computers, discs, and software, up to $2,500.

The surviving spouse also receives $50,000 in assets and 1/2 of the remainder of the estate if the decedent left children.  If there are surviving children, each child then shares equally in the other ½ remainder of the estate.  In this case, only the wife and decedent’s seven children would benefit in intestacy.  Decedent’s sister and nephews receive nothing under intestacy.

However, assuming that the 2006 copy recited essentially the same provisions or perhaps even more favorable provisions for the son, then the son could have sought to admit the copy as a lost Will under SCPA 1407.  Successful admission of the copy to probate would have meant that the 1997 would have been revoked, which seems to have been the desired outcome, and that the estate would not have gone into intestacy.  The requirements for admission of an instrument as a lost Will are the following:

  1. Due execution of the Will, including proof of testamentary capacity;
  2. No subsequent revocation of the Will;
  3. A copy or draft of the Will proved to be true or, if there is no copy or draft of the Will, then all of the provisions of the Will must be clearly and distinctly proved by at least two credible witnesses.

The son’s summary judgment motion contained all of the elements necessary to state a prima facie case for a lost Will.  Was it a deliberate choice to not do so, or simply a legal oversight? Since he and the other litigants had already spent time and money arguing for the probate of the September 25, 2007 Will that had been denied probate, did he deem it likely that this would be the result of a lost Will petition? Or did the new depositions make it more likely that a lost Will petition might succeed? Was the point of his summary judgment motion simply to defeat his aunt and cousins even at the expense of receiving less in intestacy than even under the 1997 Will?

We will never know.  The court found that the May 27, 1997 Will was revoked by copy the 2006 Will dated March 6, 2006.  As a result, the court found that the decedent has died intestate (without a Will).

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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When Is the Best Time To Make or Review Your Will?

If you have been asking yourself these questions, the answer is likely “now.”  There are several reasons why you may not want to wait.  The most obvious one is that tomorrow is promised to no one.  The second reason is that it is a good practice to review the terms of your Will on a yearly basis to assess the consequences of changes in family composition, financial updates, and changes in the tax law that may affect your estate.  The third reason is one that is often overlooked, that you may not always have the testamentary capacity to make a Will.   I have covered this topic in a previous post.

Making or changing a Will is a serious endeavor, and it should never be undertaken for negative reasons, such as to spite a relative or friend.  In New York, the making of a subsequent Will executed with all required formalities constitutes a revocation of any previously executed valid Wills and their codicils.  In New York,  a partial revocation by physical act, such as words added to a Will after it has been signed and witnessed, is not recognized and will have no effect on the Will.

A Will can also be revoked if it is destroyed by a physical act.  If the subsequent Will is later destroyed by a physical act, such as cutting it up or burning it or crossing out the testator’s signature, the prior Will that it replaced will not be revived in New York.  The earlier Will is legally invalid, and the decedent will have died intestate.

The case of Mabel Waingrow of Blooming Grove, New York provides a cautionary tale.  The owner of Town & Country Coffee Shop on Route 94, Waingrow died in 2003 at the age of 99 leaving an estate valued at $990,000.  She had outlined her husband, her son, and her siblings.  Her closest relatives were her five great-nieces and -nephews whom she never knew because they lived abroad.  A diligent attorney who prepared Waingrow’s Will in 2000 had discovered the distant relatives.

Waingrow had closed her coffee shop when she had turned 90, and without the constant social interaction she soon became a lonely recluse, beset by thoughts that people were trying to steal from her.  To her rescue came Nick Stagliano, a former criminal investigator for the Orange County District Attorney’s Office who befriended her and took care of her.    According to a story in the local Times Herald-Record, Stagliano was the only one present for her 99th birthday.

In 2001 Waingrow, who had a habit of writing a new Will to benefit whoever was friendliest to her and to spite those who had “unfriended” her, executed a new Will naming Stagliano as the sole beneficiary of her entire estate.  The next day, the Orange County Court named him Waingrow’s legal guardian because she could no longer take care of her affairs.  Her great-nieces and -nephews were not informed of this appointment.

Five years after her death, one of her grand-nieces filed suit contesting the Will claiming undue influence . The case was settled shortly after the trial began.  Waingrow’s five great-nieces and nephews received at least $500,000 of the estate, with the remainder going to Stagliano.  Stagliano also agreed to give up his role as executor of the estate.

In her multiple executions of Wills, Waingrow chanced revoking a valid Will because her failing mental health made her capacity to execute a valid Will questionable.  Had her 2001 Will been declared invalid  at trial due to undue influence, then she would have been deemed to have died intestate.

When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation. In this system, each person is weighed equally. By virtue of their presence on the family tree, no one can be disinherited.

New York also has a “laughing heir” statute (EPTL §4-1.1(6)). A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death. To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased: “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.” No one more remote, such as a great-grandchild, may inherit. After that, the property of the deceased escheats to the State.

Since Waingrow had no grandchildren, and since her siblings had predeceased her, her surviving grand-nieces and -nephews risked having the entire estate escheat to the State if they pressed having Waingrow’s Will declared invalid because of undue influence on the part of Stagliano.  The prior Will executed in 2000 could not be revived under New York law.   Thus the only way that the grand-nieces and -nephews could be certain to receive any money from the estate was to settle with Stagliano.

The case of  Mabel Waingrow points out once again the necessity of working with an attorney who will  draft your Will and tailor it to your individual needs. Though it may seem contrary to nature, children at times do predecease their parents, as Mabel’s son did, and this reality must somehow be accounted for in your Will.  Your attorney will work through some scenarios with you to make sure that all of your wishes are met and executable. No boilerplate form can do this kind of reasoned and careful drafting befitting your individual needs.  

It is also a good practice to make a yearly appointment with your attorney to review your Will.  Things in your life will surely change from year to year, and it is a good practice to get in the habit of talking through those changes with your attorney. Your attorney will be able to advise you as to any impact on your estate plan.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!” under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.